REPUBLIC v. DISTRICT MAGISTRATE GRADE II, BIBIANI; EX PARTE DAAH

JUDGMENT OF TWUMASI J.

This is an application for the prerogative order of prohibition to issue against the District Magistrate Grade II, Bibiani, on the ground that he lacks jurisdiction to hear and determine a land suit pending before him. Needless to point out, section 38 of the Courts Act, 1971 (Act 372), limits the jurisdiction of the district court grade II in land matters to lands whose value does not exceed one thousand cedis (¢1,000). This statutory provision does not, however, seem to be riderless because section 37 (3) of the Act imposes a mandatory duty upon the district court to proceed to hear and determine any dispute relating to any land notwithstanding that its value exceeds one thousand cedis (¢1,000) “if the parties agree that it should do so.” Obviously, the converse must also be accorded an implied statutory force that, where the parties do not agree, the district court shall not proceed to hear and determine the suit. There are therefore two prerequisites: (a) the evidence that the value of the land exceeds one thousand cedis (¢1,000), and (b) an agreement by the parties that the court proceeds to hear and determine the suit. It is section 37 (2) of the Courts Act, 1971, that imposes a mandatory duty on the district court to call evidence as to the value of any land where a dispute arises as to its value. Where the court finds from the evidence that the value of the land is in excess of the value specified for the jurisdiction of the court, the court shall, notwithstanding the excess value, proceed to hear the case if the parties agree that it should do so. The first question to be asked always is whether there is a dispute as to the value of the land.

In the instant case, the defendant disputed the value of the land by swearing to an affidavit that it exceeded ¢1,000. He estimated it to be worth ¢3,000. The learned magistrate conceded that the [p.767] performance of the mandatory duty imposed upon him by section 37 (2) of the Act was required at that stage of the proceeding. This statutory duty was not performed. The learned magistrate stated in an affidavit as his reason for the default that before he could call evidence, the defendant (the applicant in the present proceedings willingly withdrew his affidavit. But rather puzzling enough, this same defendant has averred in his affidavit before this court that he in fact raised an objection to the jurisdiction of the trial magistrate but despite the objection, the magistrate said